Amy Salter v. DeSoto Parish Police Jury and Jean Simpson Personnel Services

Judgment rendered May 17, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,982-WCA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

AMY SALTER Plaintiff

versus

DESOTO PARISH POLICE JURY Defendants
AND JEAN SIMPSON PERSONNEL
SERVICES

*****

Appealed from the
Office of Workers’ Compensation, District 1-W
Parish of DeSoto, Louisiana
Trial Court No. 2003450

Shannon Bruno Bishop
Workers’ Compensation Judge

*****

THE ANZELMO LAW FIRM Counsel for Defendant-
By: Donald J. Anzelmo Appellant, Jean Simpson
Charles A. Anzelmo Personnel Service

THE LAW OFFICE OF Counsel for Plaintiff
ALLEN COOPER, LLC
By: J. Allen Cooper, Jr.

*****

Before COX, ROBINSON, HUNTER,
MARCOTTE, and ELLENDER, JJ.

HUNTER, J., concurring in part, and dissenting in part.

COX, J.

This case arises out of Worker’s Compensation Court District 1W,

DeSoto Parish, Louisiana. Amy Salter claimed she injured her arm, wrist,

elbow, and hand on May 22, 2019, while working for Jean Simpson Personnel

Services (“Jean Simpson”) at the DeSoto Parish Animal Shelter. All

originally named defendants have been dismissed except for Jean Simpson.

The worker’s compensation judge (“WCJ”) found in favor of Mrs. Salter,

awarding her $331.73 in weekly wages, medical treatment, penalties in the

amount of $8,000, and attorney fees in the amount of $20,000. Weekly wages

and medical treatment were awarded beginning May 31, 2019, without a

specified end date. Jean Simpson now appeals. For the following reasons,

we modify the weekly benefits and medical treatment to end on October 28,

2019, when Mrs. Salter was discharged from medical treatment by her

treating physician. We reverse the judgment granting penalties and attorney

fees.

FACTS

On June 13, 2019, Mrs. Salter filled out a Statement of Injured

Worker’s Compensation Form. She alleged a work accident occurred on May

22, 2019. She stated, “A coworker and I were taking photos for the animal

shelter Facebook[.] I was handling cats & shaking toys to get them to look at

the camera [and] my right hand became locked in position.” She stated her

injury was that her “hand became locked in position, there was increasing

pain in hand and wrist.”

On June 8, 2020, Mrs. Salter filed a disputed claim for compensation,

alleging the following: wage benefits have not been paid; medical treatment

has not been authorized; the worker’s compensation rate is incorrect; she is

owed reimbursement for mileage, prescription medications, and medical bills;

she is owed for TTD and/or SEB and/or PPD and/or PTD;1 and defendants

should pay penalties, interest, and attorney fees.

On June 24, 2020, Jean Simpson filed an answer and exception and

denied the following: Mrs. Salter suffered an injury on May 22, 2019; she was

temporarily disabled for any reason related to her employment; she is

permanently disabled; she suffered an injury resulting in a loss of earning

capacity; and she is entitled to rehabilitation services.

All parties agreed to multiple continuations of the trial due to Covid-19

and the additional time needed for discovery. Trial on the matter was held on

August 17, 2021. At the beginning of trial, Mrs. Salter and Jean Simpson

stipulated to the dismissal of defendants DeSoto Parish Police Jury and

Summit Claims Management.

Mrs. Salter’s medical history was submitted as evidence at trial. The

following is a summary of her medical history that is pertinent to the alleged

injury:

• 8/3/2017: Highland Clinic- arthralgia and fibromyalgia; prescribed
Gabapentin; ordered x-rays and labs; patient complains of “pain in b/l
hands, wrists, knees, and upper back. Symptoms started a few years
ago”; formerly diagnosed with RLS (Restless Leg Syndrome); “Neck,
wrist, knees ankles and jaw- painful”; “Hands- Left: +TTP at wrist,
Range of motion: mild pain w/ motion, Right: +TTP wrist, Range of
motion: mild pain w/ motion”; Elbow- Left: Normal, Right: Normal.

• 8/3/2017: Highland Clinic (hand x-ray)- Right: “There is expected
mineralization and anatomic alignment. A tiny calcified body seen on
the AP view projecting between the triquetrum and lunate measures up
to 2 mm in size; this could represent a loose intra-articular body, soft
tissue calcification or old fracture fragment.” Left: “There is expected

1
TTD stands for temporary total disability; SEB stands for supplemental earnings
benefits; PPD stands for permanent partial disability; and PTD stands for permanent total
disability.
2

mineralization and anatomic alignment. No fracture, dislocation or
radiopaque foreign body is identified… Unremarkable left hand.”

• 8/17/2017: Highland Clinic- fibromyalgia, chronic pain of left knee,
and other chronic pain; “Xray of hands ok”; “Hands- Left: +TTP at
wrist, Range of motion: mild pain w/ motion, Right: +TTP wrist, Range
of motion: mild pain w/ motion”; Elbow- Left: Normal, Right: Normal.

• 5/23/2019: DeSoto Regional Health System- patient complains of wrist
pain for two days; “No injury. No swelling, no redness, no weakness.
Pain is exacerbated with rotation of the wrists and also palpation of the
distal mid and upper forearm and medial epicondyle. No injury noted.
No weakness.”; Treatment: Medrol tablet, Meloxicam tablet, and
forearm band.

• 5/23/2019: DeSoto Regional Health System (Imaging Services Report)-
right wrist pain; AP and lateral views of the right wrist were obtained;
Findings: “…bones appear intact. No displaced fractures or dislocations
seen. Joint spaces appear normal in width.”

• 5/31/2019: Shreveport Doctor’s Rehab- right hand and wrist pain of
4/10; right arm pain when touching it and certain movements; patient
has been wearing immobilizer on right hand; x-ray after injury of hand,
wrist, and arm were within normal limits; current medications include
Adderall and Prozac daily and Xanax as needed; EXTREMITIES: pain
noted in hand and wrist, swelling between thumb and wrist, and range
of motion limited due to pain; prescribed Flexeril; no treatment
recommendations; patient off work until further notice.

• 7/1/2019: Shreveport Doctor’s Rehab- elbow, wrist, and hand pain at
7/10; patient complains of weakness in hand, elbow, and wrist;
“EXTREMITIES: Examination of the right elbow, hand, and wrist
reveals pain noted on manipulation to the joints. She does have
swelling in the right wrist, mostly located between the thumb and wrist.
Range of motion is limited in the elbow, wrist, and hand in all planes
due to pain. No bruising.”; prescribed Flexeril and Tramadol; x-ray
from 5/23/2019 was within normal limits; ordered another x-ray; no
treatment recommendations; patient currently not working.

• 8/13/2019: Orthopedic Specialists of Louisiana (Initial Evaluation)-
pain in right hand and weakness; examination shows an equivocal
Tinel’s and negative Phalen’s; negative Allen’s test; mildly tender to
palpation to first web space; x-rays on three views are unremarkable;
impression: right carpal tunnel; she may continue working.

• 8/26/2019: Shreveport Doctor’s Rehab- wrist pain is 1/10; patient states
weakness in elbow, wrist, and hand; EXTREMITIES: pain noted in
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elbow, hand, and wrist upon manipulation, slight swelling of wrist, and
no bruising noted; patient does not need medications; no treatment
recommendations; patient currently not working, no strenuous activity
or heavy lifting.

• 8/27/2019: Orthopedic Specialists of Louisiana- Nerve studies were
done, which came back negative; patient complains of pain in wrist;
“She states when she was at work she would take pictures of pit bulls
and would have to grab the leash and this would pull her arm”;
examination of wrist shows tenderness to de Quervain’s area, very
mild; Impression: tendinitis in right upper extremity; patient given
short arm Velcro forearm splint; prescribed Mobic; patient to remain
off work.

• 9/16/2019: Orthopedic Specialists of Louisiana- patient states she is
still having some pain; when she wears her brace, she has no pain;
examination of wrist shows pain on Watson’s maneuver; negative
Tinel’s and negative Phalen’s; impression: right carpal tunnel
syndrome; sent to therapy; continue to be off work.

• 9/24/2019: Shreveport Doctor’s Rehab- follow-up from work accident
on May 22, 2019, “in which her wrist was caught in a dog leas[h]”;
patient reports EMG that was normal; 0/10 wrist pain; patient
complains of some weakness in wrist; “EXTREMITIES: Examination
of the right wrist reveals normal range of motion. Normal strength with
grip, finger abduction, finger flexion, and thumb abduction. Negative
Tinel’s at the elbow and the wrist.”; patient does not need medication at
this visit; no treatment recommendations; patient is to remain off work.

• 10/7/2019: Orthopedic Specialists of Louisiana (Dr. Acurio)- patient
states she is still having pain in hand and wrist; has not been approved
for OT; examination shows negative Phalen’s; pain on Tinel’s
maneuver but no electrical sensation; impression: right carpal tunnel
syndrome; recommend therapy; patient to remain off work.

• 10/28/2019: Shreveport Doctor’s Rehab- no complaints; weakness in
wrist intermittently; “EXTREMITIES: Reveals full range of motion
without pain, tenderness, or spasms”; “IMPRESSION: Right wrist
pain- resolved”; no medication needed; if pain returns in next two to
three weeks, come back for a visit; patient is discharged. (emphasis
added).

• 11/19/2019: Shreveport Doctor’s Rehab- patient was discharged
10/28/2019 with 0/10 pain; patient states she was putting sheets on
a bed and pain came back, her arm swelled; wrist and hand pain
4/10; EXTREMITIES: wrist and hand reveal some swelling and range
of motion limited due to pain; prescribed Flexeril; recommend x-rays
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and PT, but denied by worker’s comp; patient to remain off work.
(emphasis added).

• 12/19/2019: Shreveport Doctor’s Rehab- wrist pain 3/10; hand pain
2/10; EXTREMITIES: pain noted on palpation of wrist and base of
thumb; prescribed diclofenac gel; recommend x-rays and PT, but
denied by worker’s comp; patient to remain off work.

• 1/20/2020: Shreveport Doctor’s Rehab- wrist pain 2/10; hand pain
9/10; complaining of elbow pain; patient states she has weakness in
wrist; EXTREMITIES: no swelling of wrist, no crepitus noted, no
swelling in hand; prescribed Flexeril; recommend x-rays and PT, but
denied by worker’s comp; patient to remain off work.

• 2/18/2020: Shreveport Doctor’s Rehab- complains of wrist and hand
pain; pain is 4/10; complains elbow hurts; patient complains of
weakness in right hand and wrist; EXTREMITIES: right wrist revealed
swelling, no crepitus noted, pain on manipulation to small bones of
hand and inner aspect of wrist; no refills needed; recommend x-rays
and PT, but denied by worker’s comp; patient to remain off work.

• 3/19/2020: Shreveport Doctor’s Rehab- complains of elbow, wrist, and
hand pain; pain is 3/10; muscle relaxers are making her sleepy and not
helping significantly; “EXTREMITIES: reveals some tenderness over
the right elbow at the cubital tunnel and also over the lateral
epicondylitis. Negative Tinel’s over the wrist;” strength in upper
extremity is 4/5; prescribed Gabapentin; recommend x-ray and PT,
which have been denied by worker’s comp; patient is to remain off
work.

• 4/20/2020: Shreveport Doctor’s Rehab (telemedicine visit- no physical
exam)- wrist pain is 4/10; elbow pain is 3/10; hand pain is 1/10; patient
complains of weakness in right wrist; base of thumb hurts and keeps
her from sleeping; patient denies any swelling; prescribed Tizanidine
and diclofenac gel; recommend x-ray and PT, but still denied by
worker’s comp; patient is to remain off work.

• 5/19/2020: Shreveport Doctor’s Rehab (phone visit- no physical exam)-
elbow pain is 3/10; wrist pain is 2/10; “EXTREMITIES: reveals pain
noted per patient at base of her right thumb and her wrist, as well as
elbow. There is no swelling or crepitus in the wrist or elbow per
patient.”; prescribed Tizanidine; recommend x-ray and PT, but still
denied by worker’s comp; patent is to remain off work.

• 6/17/2020: Shreveport Doctor’s Rehab (phone visit- no physical exam)-
elbow pain is 6/10; patient states she has weakness in wrist;
“EXTREMITIES: Per patient, she states that she has pain in her right
elbow. The pain worsens with flexion, and whenever she is lifting or
grabbing anything with her right arm the pain worsens then, too. She
denies any swelling or crepitus in the right elbow. She states she has
5

weakness in her wrist and is unable to pick up any heavy objects with
her right hand;” prescribed Tizanidine; recommend PT; patient is to
remain off work.

• 7/16/2020: Shreveport Doctor’s Rehab (phone visit- no physical exam)-
elbow pain is 5/10 currently and 2/10 or 3/10 when not in use; patient
states she has pain in elbow, which hurts when she flexes, lifts, or
reaches behind her; patient complains of weakness in wrist; patient
states she is not swollen, has no clicks or crepitus at elbow, and no
bruising; prescribed Tizanidine; recommend PT; patient to remain off
work.

• 8/14/2020: Shreveport Doctor’s Rehab (in person visit)- elbow pain is
4/10; patient states she has weakness in wrist; “EXTREMITIES:
reveals pain in her right elbow when she flexes and states it hurts worse
when she lifts anything with her right arm. There is no swelling. She
states that her elbow does not click; just pain.”; strength is 4/5 in right
upper extremity; prescribed Tizanidine; recommended MRI and PT;
patient to remain off work.

• 9/15/2020: Shreveport Doctor’s Rehab (telemedicine visit- no physical
exam)- elbow pain is 2/10; patient states medication is working, but she
has to take more than the recommended dose for relief; patient
complains of weakness in wrist; recommend MRI and PT, but denied
by worker’s comp; patient to remain off work; refills not needed at this
time.

• 10/21/2020: Shreveport Doctor’s Rehab (telemedicine visit- no
physical exam)- elbow pain is 3/10; patient states she is out of muscle
relaxers; patient denies any swelling; prescribed Tizanidine;
recommended MRI and PT, but denied by worker’s comp; patient to
remain off work.

• 12/30/2020: Shreveport Doctor’s Rehab (telemedicine visit- no
physical exam)- elbow pain is 6/10; patient complains of wrist pain and
swelling; prescribed Tizanidine; recommend MRI and PT; patient to
remain off work.

• 2/4/2021: Shreveport Doctor’s Rehab (telemedicine visit- no physical
exam)- elbow pain is 3/10; wrist pain is 5/10; patient states wrist is
often swollen & weakness in right wrist, hand, and elbow; patient states
pain is worse when she uses elbow/wrist; prescribed Tizanidine;
requested MRI and PT, but denied by worker’s comp; patient is to
remain off work.

• 3/8/2021: Shreveport Doctor’s Rehab (telemedicine visit- no physical
exam)- elbow pain is 4/10; wrist pain is 5/10; patient states: pain in
elbow and wrist, no swelling, elbow hurts when moved in all
directions, and swelling in wrist when she uses it; refilled Tizanidine;

6

requested MRI and PT, but denied by worker’s comp; patient is to
remain off work.

• 4/6/2021: Shreveport Doctor’s Rehab (telemedicine visit- no physical
exam)- elbow pain is 4/10; wrist pain is 3/10; patient states: pain in
elbow and wrist, no swelling, no crepitus, can move elbow and wrist in
all directions, and repetitive movement causes her wrist to swell;
refilled Tizanidine; requested MRI and PT but denied by worker’s
comp; patient is to remain off work.

Mrs. Salter was the first to testify at trial. She stated that while

working for Jean Simpson she was a kennel tech at DeSoto Parish Animal

Shelter. She stated that prior to May 22, 2019, she had not had any accidents

on the job, but she did have stress and strain from performing all the job

activities. She described her job activities as cleaning up after animals,

feeding them, keeping the facilities clean, answering phones, stocking pet

food and supplies, bathing the animals, moving the animals around, and

assisting with animal medical needs.

Mrs. Salter recalled the following when questioned about her May 22,

2019, accident. She and a coworker were taking pictures of the animals to

post online; she was shaking, rattling, and squeezing toys to get the animals to

look at the camera, and while doing so, she felt a “cord or something” pop.

She stated that her hand would not move and she could not turn her wrist.

She described the toys as “like things on a stick. They would dangle, or

squeaky toys.” She testified that a few hours after the onset of the pain in her

hand and wrist, the pain gradually increased and moved to her elbow.

Mrs. Salter stated that her coworker who was taking the pictures

noticed that something was wrong and asked her if she was okay. She

testified that she walked out of the room, her hand was swollen, and another

coworker brought her an ice pack. She stated that her supervisor also came to

7

check on her but was called away. She testified that the director of the animal

shelter allowed her to leave about an hour early. Mrs. Salter stated that she

did not seek medical treatment the day of the incident but went the following

day to DeSoto Regional.

On cross-examination, Mrs. Salter admitted that the toys were light-

weight objects and she was using them for an hour or hour and a half before

the onset of pain. When asked why her elbow is not mentioned in some

medical records, she stated that the elbow pain comes and goes and her

hand/wrist are the main problems. She stated that she did not attempt to go

back to work or find a job after she was discharged on October 28, 2019. She

further testified that she remembered that her problems seemed to be resolved

but stated the pain returned so she went back for medical treatment on

November 19, 2019.

When questioned about her August 3, 2017, visit to Highland Clinic

about pains in her bilateral hands, wrists, knees, and upper back, she stated:

With the knees and all that, it did start a few years ago. I would
have problems with my knees and my back. But the wrist just
really did last just a month or so. I would wear a brace
occasionally, and then it’d go away. But it -- the wrist problem
didn’t last for years, just the problem with knees and other things
like that just aching until I finally went to see a doctor to see if
there was arthritis or anything going on.

Mrs. Salter stated that although she was prescribed Gabapentin for

fibromyalgia, she only used the medication when her Restless Leg Syndrome

would bother her, and she did not take it daily. During Mrs. Salter’s

testimony, Jean Simpson pointed out that Mrs. Salter failed to indicate on her

employment paperwork that she was treated for anxiety and depression.

Daniel Salter, Mrs. Salter’s husband, was called to testify. He stated

that he spoke with Mrs. Salter over the phone after the accident and she said
8

her hand “just locked up” and she did not know what happened. Mr. Salter’s

narrative of what Mrs. Salter told him after the accident coincided with Mrs.

Salter’s testimony. He testified that he saw swelling on the back of Mrs.

Salter’s hand and her wrist. He stated that he has seen Mrs. Salter stop doing

day-to-day tasks like washing dishes when her arm starts hurting. He stated

that some of Mrs. Salter’s recreational activities have been limited as well.

He testified that when they went on a cruise, she could not play cornhole and

was only able to participate in activities if they did not require the use of her

arm.

Jean Simpson called Constance Philipp to testify. She testified that she

is the director at Animal Services in DeSoto Parish. She stated that she was

told the following after the incident:

Both Kayli and Amy came to the lobby after they were finished
with that activity and let me know that Amy had expressed
“Ow,” during the event, and Kayli said, “Do you want to
continue?” And she goes, “Yes, it’s fine.” And when they came
out, Amy indicated that it was difficult to impossible to move her
wrist. I asked her at that point if she wanted to go to the doctor,
and she said, “No, I’ll just, you know, see how it goes.” And I
said, “Well, go to the back, put ice on it,” of which Adriana, the
supervisor, went back there and looked at things as well and said
she could move her fingers and -- and bend her wrist and -- but
when Amy came up, since it wasn’t a hundred percent per her
assessment, I said “Well, why don’t you go home for the rest of
the day, let it relax, keep ice on it.” And I suggested strongly
that if it wasn’t better in the morning she go seek medical
attention.

Ms. Philipp testified that she asked Mrs. Salter if she had ever had any

problems with her right hand; Mrs. Salter told Ms. Philipp that she had

problems with her left hand and had fibromyalgia. Ms. Philipp testified that

although she did not look closely at Mrs. Salter’s hand, she did not see any

swelling. She stated that Mrs. Salter came back to work for a few hours on

May 28, 2019, but did not stay long. On May 28, 2019, Mrs. Salter told Ms.
9

Philipp that her hand still hurt and she was going to go to another doctor

because the first doctor did not “find anything wrong[.]” Ms. Philipp testified

that although she attempted to call and text Mrs. Salter, she has not been in

contact with her since May 28, 2019. Ms. Philipp described the toy as a

fishing rod without a reel with a feather or bells hanging from the string. She

stated the “rod” is bounced up and down and the cat attacks the feathers or

object that is hanging from the string. She also described a small stuffed

monkey with a squeaker toy inside. She stated that to entice the cat to look

toward the camera, the employee will shake the stuffed animal and squeeze

the squeaker between their thumb and finger. Jean Simpson attempted to

admit photos of the toys, but the WCJ did not allow them because it was not

listed in their pretrial exhibit list.

Both parties filed post-trial briefs. The WCJ filed its written reasons

for judgment on February 14, 2022. It stated that although defendants

asserted that the doctor’s opinions were tainted by an inaccurate account of

Mrs. Salter’s medical condition, no additional evidence was presented to the

court to show that the doctors would have changed their opinions had they

been presented with additional medical history. The WCJ found that Mrs.

Salter met her burden to show that her injuries were caused by the work

accident and awarded weekly wage benefits of $331.73 from May 31, 2019,

without a specified end date. The WCJ awarded Mrs. Salter medical

treatment pursuant to the medical treatment guidelines. The WCJ stated there

was a lack of evidence to dispute the causal connection between Mrs. Salter’s

injuries and accident and no additional evidence was presented to show that

Mrs. Salter was capable of performing any work. The WCJ awarded $8,000

in penalties for failure to authorize medical treatment, failure to pay medical
10

expenses, and failure to pay indemnity benefits and awarded $20,000 in

attorney fees. The WCJ signed the judgment memorializing those rulings on

February 7, 2022.

On March 4, 2022, Jean Simpson filed a “motion and order to recall

notice of signing of final judgment and to reissue corrected notice of signing

of final judgment or, alternatively, petition and order for suspensive appeal.”

It noted that the postmark of the notice of signing of final judgment was dated

February 22, 2022, which was 14 days after the stated date of mailing. It

argued that by the time it received the judgment, the time for filing a motion

for new trial had already passed and it had inadequate time to properly

address available remedies. Jean Simpson also pointed out that the notice of

signing of final judgment was defective because it states that the Honorable

Linda Lea Smith signed the final judgment, but Judge Shannon Bruno Bishop

actually rendered the judgment. Jean Simpson requested that the WCJ recall

the notice of signing of final judgment, correct the notice to properly identify

the judge, and reissue the judgment to afford defendants ample time to take

appropriate action. Jean Simpson stated that if the WCJ refused to grant the

requested relief, it wished to file a suspensive appeal of the judgment.

On March 14, 2022, the WCJ signed an order granting Jean Simpson’s

motion and suspensive appeal.

DISCUSSION

Accident & Injury

As quoted below, the definition of accident includes the finding of an

injury. Therefore, these two arguments will be discussed together.

Jean Simpson argues the trial court erred in finding that Mrs. Salter met

her burden of proving the occurrence of a compensable accident. Jean
11

Simpson argues that the trial court based its ruling on the fact that “it [was]

undisputed that Claimant reported a sudden pain as a result of working with

the toys,” and that “there [was] no evidence to dispute the accident.” Jean

Simpson asserts that the trial court did not apply the meaning of “accident” as

it is defined in the statute.

Mrs. Salter argues that her work-related accident complies with the

statutory definition of accident. She states that she has specifically identified

the time, place, and manner of the accident and there was an objective

manifestation (swelling) of her injury. Mrs. Salter argues that she presented

more than a preponderance of the evidence that she suffered a work-related

accident. She argues the trial court was not manifestly erroneous and should

be affirmed.

Next, Jean Simpson argues the trial court erred in finding that Appellee

met her burden of proving that her alleged injuries were caused by an on-the-

job injury. Jean Simpson argues that Mrs. Salter presented no competent

evidence that an incident on May 22, 2019, caused an alleged injury. Jean

Simpson highlights that she failed to prove that she was in good health prior

to the alleged accident, which could have established a causal connection

between her disability and on-the-job injury.

Mrs. Salter argues that the trial court correctly found that she suffered

an injury as a result of the work-related accident. She asserts that before the

accident, she did not have any pain in or difficulty with her right wrist, hand,

or arm. Mrs. Salter states that since the accident, she has had significant pain

in and difficulty using her right wrist, hand, and arm and she has had a

significant loss of grip strength. She argues that this creates a legal

12

presumption that the subject work accident caused her disabling wrist, arm,

elbow, and hand injuries.

The purpose of the Workers’ Compensation Act is to set up a court-

administered system to aid injured workmen by relatively informal and

flexible proceedings that are to be interpreted liberally in favor of the

workmen. Slade v. State ex rel. Univ. of La. at Monroe, 46,720 (La. App. 2

Cir. 11/9/11), 79 So. 3d 463. The Louisiana Worker’s Compensation Act

defines “accident” as “an unexpected or unforeseen actual, identifiable,

precipitous event happening suddenly or violently, with or without human

fault, and directly producing at the time objective findings of an injury which

is more than simply a gradual deterioration or progressive degeneration.” La.

R.S. 23:1021(1). In a workers’ compensation action, the plaintiff must

establish the occurrence of a work-related accident by a preponderance of the

evidence. Koenig v. Christus Schumpert Health Sys., 44,244 (La. App. 2 Cir.

5/13/09), 12 So. 3d 1037.

If the evidence leaves the probabilities evenly balanced, or if it shows

only a possibility of a work-related event or leaves it to speculation or

conjecture, then the plaintiff fails to carry his burden. Millage v. Builder’s

Lumber & Supply Co., 38,635 (La. App. 2 Cir. 7/2/04), 877 So. 2d 1171, writ

denied, 04-1885 (La. 10/29/04), 885 So. 2d 594. As this Court stated in Jones

v. AT&T, 28,059 (La. App. 2 Cir. 2/28/96), 669 So. 2d 696:

While the worker’s testimony alone may be sufficient to
discharge that burden, it will be inadequate where (1) other
evidence discredits or casts serious doubt upon the worker’s
version of the incident; or (2) the worker’s testimony is not
corroborated by the circumstances following the alleged
incident... Such corroboration, of course, may include medical
evidence and the testimony of fellow workers, spouses, or
friends.

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Where the employee is able to identify an event marking the time the

injury occurred or the symptoms arose or suddenly or markedly increased in

severity, even if such event occurs during the performance of customary or

routine work activities, the employee has established an “accident” within the

meaning of La. R.S. 23:1021(1). Begue v. Crossover, Inc., 03-0267 (La. App.

1 Cir. 11/21/03), 868 So. 2d 100.

“Injury” and “personal injuries” include only injuries by violence to the

physical structure of the body and such disease or infections as naturally

result therefrom. La. R.S. 23:1021(8)(a). The statutory requirement of

violence is satisfied when the injury has a violent or harmful effect on the

employee’s physical condition, even if the cause of that change was not in

itself violent. Sparks v. Tulane Med. Ctr. Hosp. & Clinic, 546 So. 2d 138 (La.

1989). Thus, there is an “injury” when there is “violence,” i.e., a harmful

effect, to the “physical structure of the body.” Id.

The claimant seeking workers’ compensation benefits for work-related

accident is not required to prove the exact cause of her disability, but she must

demonstrate by a preponderance of the evidence that the accident has a causal

connection with it. Disability may be presumed to have resulted from an

accident if, before the accident, the claimant was in good health, but

commencing with the accident, the symptoms of the disabling condition

appear and continuously manifest themselves afterward, provided that there is

sufficient medical evidence to show a reasonable possibility of a causal

relation between the accident and disability, or the nature of the accident,

combined with the other facts of the case, raises a natural inference of

causation. Hill v. IASIS Glenwood Reg’l Med., 50,531 (La. App. 2 Cir.

5/18/16), 195 So. 3d 536, writ denied, 16-1357 (La. 11/7/16), 209 So. 3d 104.
14

Whether the claimant has carried his burden of proof and whether

testimony is credible are questions of fact. Koenig v. Christus Schumpert

Health Sys., supra; Brien v. Leon Angel Constructors, Inc., 42,904 (La. App.

2 Cir. 3/12/08), 978 So. 2d 576, writ denied, 08-0802 (La. 6/6/08), 983 So. 2d

919. Factual findings in a workers’ compensation case are subject to the

manifest error or clearly wrong standard of appellate review. Koenig v.

Christus Schumpert Health Sys., supra; Player v. International Paper Co.,

39,254 (La. App. 2 Cir. 1/28/05), 892 So. 2d 781. In applying the manifest

error/clearly wrong standard, the appellate court must determine not whether

the trier of fact was right or wrong, but whether the factfinder’s conclusion

was a reasonable one. Stobart v. State through Dept. of Trans. & Dev., 617

So. 2d 880 (La. 1993).

The WCJ found that Mrs. Salter met her burden of proof that both an

accident and injury occurred. Based on the record before us, the WCJ was

reasonable in determining an accident occurred—i.e., an injury was caused by

an unexpected or unforeseen actual, identifiable, precipitous event happening

suddenly or violently. There is no dispute that Mrs. Salter was bouncing and

squeezing the cat toys as part of her job duties while at work. The WCJ was

tasked with determining whether squeezing and bouncing the cat toys caused

an unexpected, sudden injury. Mrs. Salter testified that as she was squeaking

and bouncing the toys for about an hour while taking pictures, she felt some

sort of a pop, her wrist immediately froze, she could not move it, and it began

swelling. Mrs. Salter reported the incident to her supervisor and she was told

she could leave work early. Mr. Salter’s testimony corroborated Mrs. Salter’s

testimony.

15

Ms. Philipp testified that she was informed of Mrs. Salter’s incident

while helping photograph cats and Mrs. Salter’s fibromyalgia and left wrist

problems, but she did not observe any swelling in Mrs. Salter’s wrist.

Mrs. Salter’s medical records indicate that she presented to DeSoto

Regional for wrist pain the day after the accident. When physicians could not

find a problem, she sought a second opinion with Shreveport Doctor’s Rehab.

At her first visit with Shreveport Doctor’s Rehab on May 31, 2018, the

physician noted right wrist/hand pain, swelling, and limited range of motion.

Her second visit to Shreveport Doctor’s Rehab, on July 1, 2019, revealed

similar observations. Mrs. Salter was referred to Orthopedic Specialists of

Louisiana. Her visit to that facility revealed pain, tenderness, and possible

right carpal tunnel syndrome. Her next five doctor visits revealed her pain

trending down, some weakness in her wrist, and little to no swelling. On

October 28, 2019, Mrs. Salter had no complaints, intermittent wrist weakness,

and full range of motion; the physical examination revealed that her right

wrist pain had resolved and Mrs. Salter was discharged. Mrs. Salter did not

present to a doctor again until November 19, 2019, when she stated that her

arm swelled and she experienced pain after changing bed sheets.

We do not find the WCJ was manifestly erroneous in the factual

finding of an accident and injury. Mrs. Salter’s testimony revealed an

injury—i.e.: a harmful effect on her physical condition; she stated she felt a

pop and experienced immobility and swelling. The fact that Mrs. Salter was

manipulating lightweight objects at the time of the accident lends itself to

showing the unexpected nature of the injury.

In viewing the evidence in a light most favorable to the worker, the

record establishes that Mrs. Salter discharged her burden of proof. Mrs.
16

Salter testified that she had not had consistent prior pain in her right arm/hand

due to her fibromyalgia; in fact, she stated that it had resolved within a month

back in 2017. Neither party presented medical testimony regarding the

connection of fibromyalgia to the injury. The WCJ highlighted that there was

no medical testimony regarding the fibromyalgia and how that would have

altered the analysis of the injury.

These assignments of error lack merit.

Continuing Disability

Jean Simpson argues that the trial court erred in finding that Appellee

met her burden of proving that she had a continuing disability. Jean Simpson

asserts that an employee is entitled to receive TTD benefits only if she can

prove by clear and convincing evidence, without any presumption of

disability, that she is physically unable to engage in any employment or self-

employment. Jean Simpson argues that Mrs. Salter’s medical records show

she was essentially pain-free in August and September of 2019 and was

released to return to work on August 13, 2019. Jean Simpson asserts that her

continuing subjective complaints of pain are the only thing that kept her from

returning to work and the complaints of pain do not justify TTD benefits.

Mrs. Salter argues that once she proved that she could no longer

perform her job at Jean Simpson, it became Jean Simpson’s burden to prove

that there is another job that she can perform. She asserts that because Jean

Simpson has not presented any evidence to that effect, she is entitled to

continuing indemnity until that occurs.

Benefits for TTD are based on “temporary total disability of an

employee to engage in any self-employment or occupation for wages, whether

or not the same or a similar occupation as that in which the employee was
17

customarily engaged when injured, and whether or not an occupation for

which the employee at the time of injury was particularly fitted by reason of

education, training, or experience[.]” La. R.S. 23:1221(1)(a). TTD may not

be awarded if the claimant can engage in odd-lot employment, sheltered

employment, or employment while working in any pain. La. R.S.

23:1221(1)(b). Compensation may be made “for only such injuries as are

proven by competent evidence, or for which there are or have been objective

conditions or symptoms proven, not within the physical or mental control of

the injured employee himself.” La. R.S. 23:1317(A). The finding of

disability, however, is a legal rather than a purely medical determination.

Harper v. Horseshoe Casino, 41,470 (La. App. 2 Cir. 10/19/06), 942 So. 2d

589, and citations therein. The WCJ must look to the totality of the evidence,

both lay and medical. Hill v. IASIS Glenwood Reg’l Med., supra.

Here, we find the WCJ erred in awarding benefits beyond October 28,

2019, when Mrs. Salter was discharged. Mrs. Salter’s medical records

indicate that she was pain-free prior to October 28, 2019, when she would

wear her arm brace. On November 19, 2019, Mrs. Salter presented to

Shreveport Doctor’s Rehab with complaints of arm pain following a new

injury, which occurred while she was home changing bed sheets. Therefore,

Mrs. Salter’s complaints of pain were associated with the subsequent injury,

not the work accident. Based on the record, Mrs. Salter was able to continue

working, even if she was limited by no heavy lifting and wearing her brace as

needed. Therefore, we modify Mrs. Salter’s award of weekly wages and

medical treatment to continue only through October 28, 2019, when she was

discharged. We reverse the WCJ’s award of any and all benefits beyond

October 28, 2019.
18

Photograph

Jean Simpson argues that the trial court abused its discretion by failing

to allow the photograph of the cat toy into evidence. Jean Simpson argues

that the trial court abused its discretion because without the photo, this Court

“cannot fully grasp the soft and lightweight nature of the toy, and the extreme

unlikelihood that it caused severe injuries” to Mrs. Salter. Jean Simpson asks

that this Court find that the trial court abused its discretion in this respect.

Mrs. Salter asserts that the trial court properly excluded Jean Simpson’s

photograph of the cat toys because it was not produced to the court or plaintiff

prior to trial along with its other exhibits. She argues that even if the trial

court should have allowed the evidence, the exclusion is harmless error

because the evidence makes no significant difference in the outcome.

A ruling on the admissibility of evidence is a question of law and is not

subject to the manifest error standard of review. Trascher v. Territo, 11-2093

(La. 5/8/12), 89 So. 3d 357, citing Frank L. Maraist, Evidence & Proof, 2 ed.

(19 La. Civ. L. Treatise, Thomson West ©2007); Berry v. Anco Insulations,

52,671 (La. App. 2 Cir. 5/22/19), 273 So. 3d 595. A district court is afforded

great discretion concerning the admission of evidence at trial, and its decision

to admit or exclude evidence may not be reversed on appeal absent an abuse

of that discretion. Medine v. Roniger, 03-3436 (La. 7/2/04), 879 So. 2d 706;

Berry v. Anco Insulations, supra. On appeal, the court must consider whether

the contested ruling was erroneous and whether the error affected a

substantial right of the party. La. C.E. art. 103(A); Berry v. Anco, supra. If

not, reversal is not warranted. Berry v. Anco, supra.

Mrs. Salter and Ms. Philipp both described the cat toys for the WCJ.

Ms. Philipp’s description was particularly detailed. The record sufficiently
19

communicates the lightweight nature of the cat toys in order for our sufficient

review of the case. Thus, the lack of the photo did not have a substantial

effect on the outcome. We perceive no abuse in the WCJ’s discretion. This

assignment of error lacks merit.

Penalties and Attorney Fees

Jean Simpson argues that the trial court erred in awarding penalties and

attorney fees to Mrs. Salter, and erred in determining the amount thereof.

Jean Simpson submits that penalties and attorney fees are to be awarded when

the employer fails to pay benefits in limited circumstances. However, Jean

Simpson highlights that if the claim is reasonably controverted, the penalties

and attorney fees awards do not apply. Jean Simpson argues that there was a

reasonable basis to deny the claim because Mrs. Salter only reported wrist

pain from dangling a lightweight toy, obtained no diagnosis based on

objective findings, and had pre-existing conditions that were not disclosed to

her providers. For this reason, Jean Simpson requests that this Court reverse

the award of penalties and attorney fees. In the alternative, if this Court

decides to uphold the award of penalties and attorney fees, Jean Simpson

requests the amount be reduced.

Mrs. Salter asserts that the trial court clearly found that Jean Simpson

did not reasonably controvert the claim (as described in the previous

arguments in favor of the trial court’s ruling); therefore, the award of

penalties and attorney fees was within the trial court’s discretion and not

manifestly erroneous.

Mrs. Salter answered the appeal and requested an increase in attorney

fees as a result of the work necessitated by the instant appeal. She requests a

fee increase of $10,000 for a total of $30,000 in attorney fees. Jean Simpson
20

argues that she has failed to provide any reason for the increase. Jean

Simpson highlights its previous argument that the trial court’s award of

penalties and attorney fees was error and should be reversed.

Pursuant to La. R.S. 23:1201(F), an employee is entitled to an award of

both penalties and attorney fees if the employer or insurer fails to commence

payments of benefits timely or to pay continued installments timely (or to pay

medical benefits timely) unless the claim is reasonably controverted.

Statutory provisions permitting the assessment of penalties and attorney

fees for nonpayment of worker’s compensation benefits are penal in nature

and must be strictly construed. Taylor v. Hollywood Casino, 41,196 (La.

App. 2 Cir. 06/28/06), 935 So. 2d 293; Lewis v. Chateau D’Arbonne Nurse

Care Center, 38,394 (La. App. 2 Cir. 04/07/04), 870 So. 2d 515. Penalties

should not be imposed in doubtful cases, where a bona fide dispute exists as

to the claimant’s entitlement to benefits, and the mere fact that an employer

loses a disputed claim is not determinative. J.E. Merit Constructors Inc. v.

Hickman, 00-0943 (La. 01/17/01), 776 So. 2d 435; Slade v. State ex rel. Univ.

of La. at Monroe, supra.

We conclude that Mrs. Salter has not established her entitlement to

penalties or attorney fees. Although Jean Simpson was unsuccessful in

presenting sufficient evidence to rebut Mrs. Salter’s claim and negate the

finding of an accident and injury, we do not find that the refusal to pay

benefits was arbitrary or the claim was not reasonably controverted. Because

of the nature of Mrs. Salter’s accident and injury, as well as her discharge

from medical care, we cannot say that Jean Simpson acted unreasonably in

disputing her claim. Therefore, we reverse the WCJ award of penalties and

attorney fees in favor of Mrs. Salter.
21

An increase in attorney fees is usually awarded when the defendant

appeals but does not obtain relief, and when the appeal has necessitated

additional work on the part of claimant’s counsel. Caparotti v. Shreveport

Pirates Football Club, 33,570 (La. App. 2 Cir. 8/23/00), 768 So. 2d 186, writ

denied, 00-2947 (La. 12/15/00), 777 So. 2d 1230. Because this claim has

been reasonably controverted, there is no statutory basis for the award of

attorney fees on appeal. Therefore, we decline to grant Mrs. Salter’s request

for attorney fees for this appeal.

CONCLUSION

For the reasons stated above, we affirm the finding of an accident and

injury; we amend the weekly benefits and medical treatment to end on

October 28, 2019, when Mrs. Salter was discharged; and we reverse the

judgment granting penalties and attorney fees. Mrs. Salter’s request for

attorney fees on appeal is denied. Each party bears their costs in this appeal.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN

PART.

22

HUNTER, J., concurring in part, and dissenting in part.

I concur in the majority’s conclusion the WCJ was not clearly wrong

in finding Mrs. Salter met her burden of proving she sustained a

compensable accident and injury.

However, based on the factual circumstances of this case, I

respectfully dissent from the majority’s determination the WCJ was

manifestly erroneous in concluding Mrs. Salter met her burden of proving

she was “disabled from work and is entitled to indemnity benefits from May

31, 2019, and ongoing,” in addition to penalties and attorney fees.

Under certain circumstances, an aggravation of an injury initially

sustained at work is regarded as compensable, obligating the employer to

continue paying compensation benefits, even in instances where the

aggravation develops away from the premises and when the claimant is no

longer employed by the employer. Buxton v. Iowa Police Dept., 09-0520 (La.

10/20/09), 23 So. 3d 275; Stewart v. Hospitals Affiliates Int’l, Inc. of Baton

Rouge, 404 So. 2d 944 (La. 1981) (a fall at home was causally connected to

an at-work injury that weakened claimant’s leg). The aggravation is regarded

as a development of the initial accident even though the aggravation develops

away from the employer’s premises after employment has terminated. Id.

The Louisiana jurisprudence is consistent with most jurisdictions,

wherein the general rule is that “natural consequences that flow from the

primary injury are compensable, absent an independent intervening cause.”

Karenina M. Darmer, Worker’s Compensation for Off-Site Aggravation of

Employment–Related Injuries– Blackwell v. Bostitch, 591 A.2d 384

(R.I.1991), 26 Suffolk U.L.Rev. 529, 532-533 n. 18, citing Hanover Ins. Co.

v. Allstate Ins. Co., 554 So. 2d 1261, 1264-1265 (La. App. 1 Cir.1989)
1

(parties stipulated the off-the-job automobile accident occurred before

claimant had fully recovered from surgery to his knee necessitated by a work

injury; the surgeon testified the knee was still highly susceptible to injury).

The key question is the relationship between the second injury and the

initial, work-related injury. The courts have held that an accident occurring

away from work is compensable, where the work-related injury has not

healed at the time of the accident, and as such, rendered the employee

susceptible to further aggravating injuries. Buxton, supra; see also Hughes v.

General Motors Guide Lamp Div., 469 So. 2d 369 (La. App. 2 Cir. 1985)

(testimony of two physicians, plus that of lay witnesses, established an

“overwhelming preponderance of the evidence” of a causal relationship

between the two injuries).

In Alphonso v. Exxon Mobil, 20-0276 (La. App. 4 Cir. 12/9/20), 2020

WL 7240131 (unpublished), writ denied, 21-00009 (La. 3/2/21), 311 So. 3d

1048, the claimant injured his left knee while at work and underwent two

surgeries. The claimant continued to experience pain and instability in his

left knee. Nearly two years after the initial work-related injury, the claimant

re-injured his left knee at home while hanging Christmas lights. His

orthopedic surgeon diagnosed the claimant with suspected re-aggravation of

the injuries he sustained in the work accident. The claimant filed a disputed

claim for workers’ compensation. The WCJ awarded benefits to the

claimant and ordered the employer to pay penalties, interest, and attorney

fees. The court of appeal affirmed, stating:

Buxton can be distinguished from the case at bar. In Buxton, we
have a claimant who aggravates a back injury caused by a
work-related accident when he has involved in a second
accident where he collided with a cow. This was the
aggravation of a pre-existing injury by an independent later
2

accident. In the instant case, [the claimant] continued to have
problems with his left knee after his work-related accident and
subsequent surgeries. In fact, the WCJ believed that the
weakened condition of [the claimant’s] knee was a cause of his
2017 accident. As such, his 2017 accident and resulting injury
could be related back to his work accident and was therefore the
aggravation of his on-the-job injuries, not a new, unrelated
injury.

Id. at 2.

In the instant case, as the majority noted, whether a claimant has carried

his or her burden of proof and whether testimony is credible are questions of

fact to be determined by the WCJ, and the factual findings of a WCJ are

subject to the manifest error standard of review. Iberia Med. Ctr. v. Ward,

09-2705 (La. 11/30/10), 53 So. 3d 421; Buxton, supra.

Herein, although Mrs. Salter was released to return to work, she was

only free from pain when she wore her arm brace. Being pain-free only with

the assistance of a brace demonstrated Mrs. Salter continued to exhibit

instability in her wrist. Thereafter, she suffered another injury, which

aggravated the prior injury.

Historically, this Court has recognized the great deference afforded to

the factual findings of the trier of fact. It is our duty to objectively review the

findings in light of the entire record to determine whether the WCJ committed

manifest error.

Further, because one purpose of the workers’ compensation law is to

promptly provide compensation and medical benefits to an employee who has

suffered a work-related injury, a failure to timely provide payment can result

in the imposition of penalties and attorney fees except when the claim is

reasonably controverted. Lafayette Bone & Joint Clinic v. Louisiana United

Bus. SIF, 15-2137 (La. 6/29/16), 194 So. 3d 1112; Trejo v. Canaan Constr.,

3

LLC, 52,697 (La. App. 2 Cir. 6/26/19), 277 So. 3d 499. La. R.S. 23:1201(F)

governs the assessment of penalties and award of attorney fees for an

employer’s failure to pay benefits or authorize medical treatment. La. R.S.

23:1201(F)(2) provides that the provision is inapplicable if the claim is

reasonably controverted or if such nonpayment results from conditions over

which the employer had no control. See, Lafayette Bone & Joint Clinic v.

Louisiana United Bus. SIF, supra; Smith v. Graphic Packaging, Inc., 51,590

(La. App. 2 Cir. 9/27/17), 244 So. 3d 755, writ denied, 17-1806 (La.

12/15/17), 231 So. 3d 640.

In order to reasonably controvert a claim, a defendant must have some

valid reason or evidence upon which to base the denial of benefits. Lafayette

Bone & Joint Clinic, supra; Trejo, supra. Reasonably controverting a claim

means that an employer has sufficient factual and medical information to

reasonably counter that provided by the claimant. The crucial inquiry in

determining whether to impose penalties and attorney fees is whether the

payor had an articulable and objective reason to deny payment at the time it

took action. Id.

In the instant case, the WCJ judge specifically found the claim was not

reasonably controverted. The WCJ stated:

The factual evidence, including the testimony of the Employer,
show Claimant suffered an immediate onset of pain while
performing her work duties. Further, the medical evidence
supports a showing that Claimant’s injuries were caused by the
May 22, 2019 accident. Claimant’s doctors opined as such and
there was not conflicting medical [evidence] to show otherwise.
There was a lack of evidence to dispute the causal connection
between Claimant’s injuries and accident.

My concern lies squarely within the mandatory language of La. R.S.

23:1201. The language serves as both a guiding light and a statutory

4

framework for implementation, thus removing any discretion from the Court.

Ergo, if the conditions of the provision are met, then fees shall be included.

Any disagreement with the provision, in theory, is an issue for the legislative

branch. However, as to its application, I see no abuse of discretion in the

WCJ’s finding the employer failed to reasonably controvert the claim. As the

WCJ noted, the employer did not present any valid reason or evidence upon

which to base the denial of benefits.

After reviewing the record in this case, I believe the WCJ’s findings

were reasonable. In both appearances before the Court, nothing was provided

to the Court to evidence a separate and distinct determination of this matter

being reasonably controverted, thus justifying any discontinuation of benefits

reasonably well-grounded in fact or law. Consequently, I can only conclude

the WCJ did not manifestly err in concluding Ms. Salter is entitled to benefits,

penalties, and attorney fees, and I would affirm the WCJ’s judgment.

5